Plaintiffs maintain that the cases cited above are distinguishable from the present case since a fence did not separate the railroad tracks and the adjoining property in those cases. Plaintiffs argue that Defendant Fluoro was negligent in failing to maintain or repair its existing fence. However, under Pennsylvania law, an adjoining property owner has no duty to repair or maintain its fence to prevent persons from climbing through holes in the fence to gain access to neighboring land upon which railroad tracks are located. See Gardner v. Consolidated Rail Corp., 524 Pa. 445, 573 A.2d 1016 (Pa. 1990); Scarborough v. Lewis, 523 Pa. 30, 565 A.2d 122 (Pa. 1989).

These recent decisions rendered by the Pennsylvania Supreme Court involved extremely similar circumstances. In Scarborough, the plaintiff, a nine-year-old boy, while playing basketball, took a shot at the basket, the ball ricocheted off the backboard, rolled to the end of the street and through a chain linked fence which stretched down an embankment toward railroad tracks. 565 A.2d at 123. The plaintiff then climbed through a hole in the fence and down the embankment to recover the ball. He threw the ball under the fence but instead of returning to the game, the plaintiff went back down to the railroad tracks. He then hopped on a freight train and after travelling a short distance tried to hop off the train but his pant leg got caught. He fell under the wheels of the train and both of his legs were severed just below his knees. Id.

The plaintiffs in Scarborough brought a cause of action for damages against the trustees for the Reading Railroad Company which joined the City of Philadelphia as an additional defendant on the grounds that it had failed to keep its fence in repair and had thereby breached a duty owed to the plaintiff to protect him from the dangerous condition created by the movement of trains on the railroad's property. The City argued that the law did not impose upon it a duty to protect a minor child from dangerous activities being conducted on another's property. The appellees in Scarborough argued that Section 323 of the Restatement (Second) of Torts created a legal duty requiring the City to repair its fence. Section 323 provides as follows:

§ 323. Negligent Performance of Undertaking to Render Services

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking.

The Supreme Court of Pennsylvania in Scarborough stated that it was "the misperception of both the Superior Court and Appellees that Section 323 creates a duty requiring the City to repair the fence." 565 A.2d at 125. The court went on to state that it has previously held that Section 323 does not change the burden of a plaintiff to establish the underlying elements of a negligence action nor can this Section 323 be invoked to create a duty where one does not exist. Id. (citing Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680, 684 (Pa. 1983)).

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